The height of good manners, but no recovery

Elevated to the bench in May 2010 as well as receiving a CBE in June for services to the administration of justice as President of the Bars and Law Societies of Europe, Lord Tyre came back to basics in Wallace v City of Glasgow Council [2010] CSOH 88.

The unfortunate facts of the case are succinctly stated in the opening paragraph of Lord Tyre's opinion:

[1] On 13 June 2007 the pursuer was employed by the defenders as a clerical assistant at Kirkriggs School, 500 Croftfoot Road, Glasgow. She was then aged 60 and was due to retire in two months' time. On that morning the pursuer was assisting with preparations for a visit by staff and pupils to Strathclyde Country Park. In her evidence to the court, she described the circumstances in which she came to sustain injury as follows. At around 10am she required to use one of the ladies' staff toilets in the school. Having done so, she wished to open the window in the toilet cubicle in order to air it as a courtesy to the next user. The pursuer is approximately 5ft 1ins in height. In order to reach the window to open it, the pursuer stood on the ceramic bowl of the toilet. As she opened the window, the toilet bowl capsized to the left and became detached from the floor. The pursuer fell to the left and landed heavily on her left heel. The toilet bowl then fell on top of her left foot. She sustained injuries to her foot including a displaced fracture of the posterior tuberosity of the calcaneum from which she has not made a full recovery.

The pursuer's action for damages against her employer, founded upon claims of breach of statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992 and the Management of Health and Safety at Work Regulations 1999 , was however unsuccessful, Lord Tyre accepting, after careful analysis of the evidence, that the accident was caused by the pursuer's own fault.  While the defenders had a duty to ensure that "No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in a manner which exposes any person performing such operation to a risk to his health or safety", "likely" in this context meant "more likely than not" and not just "foreseeable possibility".  To impose a higher duty on employers would be to create a requirement of the elimination of risk altogether.  The pursuer had had alternative means of getting the window open available to her.

The evidence shows that there was something of an "officers and other ranks" division in the use of the school's available toilets (para 4), and that the head and deputy head were unaware of the difficulty in reaching the window ring pull in the "other ranks" toilet which the pursuer had used, never having had difficulties themselves nor having representations on the matter made to them by the staff who did.  Lord Tyre notes:

[7] The pursuer stated in her evidence that prior to the accident she had "often" stood on the toilet bowl to open the window. Four of her colleagues gave evidence that they, too, had stood on the toilet to open the window. All of these ladies were around 5ft 1ins-5ft 3ins in height and were unable to reach the metal ring while standing on the floor. How frequently they had stood on the toilet was not fully explored, but what does seem clear is that it was only after the pursuer's accident that each discovered that others had been doing so too. Mrs Convery gave evidence that she was unaware that anyone was standing on the toilet to open the window. She had been a teacher in the school prior to being appointed as its deputy head, and subsequently its head, and was familiar with the cubicle where the accident occurred. She was 5ft 41/2ins tall and could open the window by stretching up and pulling the metal ring, even when not wearing heeled shoes. Prior to the accident she had never received any complaints or reports of difficulty in opening the window.

One wonders a little, however, why it had not occurred to her to ask herself if shorter women might have greater difficulties than she did.  Perhaps the understandable reticence of the pursuer and her colleagues about raising the matter with higher authority cost the former dear in the end.  At least, it appears that the cubicle in question is now provided with a window pole (para 6).

 

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